A district court in California recently rejected on proportionality grounds an attempt to conduct far-reaching discovery in a single-plaintiff case as if it were a mass-tort case. The court in Lauris v. Novartis, No. 16-cv-00393-LJO (E.D. Cal. Dec. 8, 2016), a products liability case, rejected the plaintiffs’ motions to compel discovery from additional “apex” custodians. The court further denied their request to extend the date scope of discovery through the present, allowing discovery to extend only through the end of the year in which the plaintiffs’ decedent passed.

Background

The plaintiffs alleged that Tasigna, a prescription medication for the treatment of chronic myeloid leukemia, caused atherosclerosis-related injury and death. The plaintiffs sought broad discovery — originally demanding the production of material from 41 custodians, using 20 sets of search terms. Following meet-and-confer efforts, the defendants agreed to search the files of nine custodians, which they argued comprised those most likely to have relevant information. Further, the defendants would search for documents created over a seven-year period ending in May 2014, the date when the plaintiffs’ decedent died.

Unable to extract further concessions, the plaintiffs moved to compel additional discovery. At that time, the defendants had already produced 1.9 million pages of material, with another estimated 5 million pages in the pipeline. The undisputed cost of searching, reviewing and producing such material would likely exceed $1 million, and the defendants argued that the plaintiffs’ demands were overly burdensome and disproportionate to the needs of the case.

Apex Custodians

The defendants also objected to the plaintiffs’ demand for documents from four additional “apex” custodians on the basis that it would not result in the production of a significant quantity of unique relevant documents. In response, the plaintiffs relied on In re Benicar (Olmesatran) Products Liability Litigation, where discovery was limited only after the defendants had already produced “tens of millions” of documents and the plaintiffs had already taken 38 depositions, to illustrate the reasonableness of their “narrowly-tailored and focused discovery” requests.

The court reasoned that Federal Rule of Civil Procedure 26, as recently amended, requires that discovery be proportional to the needs of the case and provides a number of factors to inform the proportionality analysis. Those factors include the importance of the issues at stake, the amount in controversy, the parties’ relative access to relevant information and the parties’ resources. Application of these factors persuaded the court to deny the plaintiffs’ request to expand the list of custodians without prejudice, finding that the additional burden or expense of the proposed discovery outweighed its likely benefit.

The court rejected the plaintiffs’ reliance on In re Benicar. In that case, discovery involved approximately 1,800 consolidated actions in a multidistrict litigation, but the Tasigna matter involved a single plaintiff. Noting that “a litigant does not have to examine every document in its voluminous files to comply with discovery obligations,” and in light of the fact that e-discovery costs to date exceeded $1 million, the court decided that the plaintiffs had not shown that the agreed-on discovery plan would not produce responsive documents. The court said that ordering the defendants to include additional apex custodians in their search protocol would “require more than mere speculation.”

Timeframe

Accusing the defendants of hiding critical causation information by imposing temporal restrictions on discovery, the plaintiffs demanded production of documents created up through the present. The plaintiffs relied on In re Fosamax Products Liability Litigation, in which that court rejected as unjustified the defendant’s decision to cut off production of certain sales representative materials at a date six months after a plaintiff’s last prescription. The defendants in the Tasigna case countered that they had already agreed to produce nearly all of the material relevant to general causation and that conducting searches over the expanded date range would create a significant burden not proportional to the needs to the case.

The court here crafted a compromise. It acknowledged that “documents created after [a] decedent’s death could bear on Defendants’ earlier knowledge,” but it weighed the amount and content of the discovery that defendants had already agreed to produce, along with the burden and expense of expanding the time period. The court ordered that the time period should be expanded through the end of the year in which the plaintiffs’ decedent died, an expansion of nine months, 21 months shy of the plaintiffs’ demand. The court rejected any comparisons between In re Fosamax, a mass-tort litigation, and this case brought by one individual, except to highlight the distinction in its proportionality analysis.

The district court’s reasoning illustrates how the amended Rule 26(b)(1) should work, with courts analyzing if the needs of the case require reasonable limits on discovery, particularly at the outset. Pursuant to Rule 26(b)(1), plaintiffs should not be permitted to insist on an extensive discovery wish list but rather must make some showing that their requests are proportional to the needs of the case. See e.g., Vaigasi v. Solow Mgmt., 2016 WL 616386, at *2 (S.D.N.Y. Feb. 16, 2016) (“it is simply inconceivable that the 1,027 items” requested “are proportional to the needs of” a single-plaintiff discrimination case).